Law and religion round-up – 6th December

The round-up gets longer and longer: some interesting case-law, developments in both parts of Ireland, organ donation in Wales, the Lord’s Prayer again – and a sad end to yet another clerical reputation…

Just how far does anti-discrimination reach? 

Can a corporate body which is a member of an LLP claim to have suffered detriment because of the protected characteristic of an individual who happened to be its principal shareholder and member? An Employment Tribunal said “yes”; and Langstaff J upheld that ruling, dismissing the argument that because only an individual can have a protected characteristic, a corporate body cannot raise a discrimination claim under the Equality Act 2010.

In EAD Solicitors LLP & Ors v Abrams (Age Discrimination) [2015] UKEAT 0054 15 0506 the issue, in essence, was whether or not a corporate body could bring a claim for direct discrimination in respect of detrimental treatment that it claimed to have suffered because of the protected characteristic of someone with whom it was associated. In this particular case the protected characteristic was age; but Langstaff J stated that the issue was a general proposition that did not turn on the particular facts of the case.

Part 5 of the Equality Act 2010 provides in s 45(2) that:

“(2) An LLP (A) must not discriminate against a member (B)– (a) as to the terms on which B is a member; [ … ] (c) by expelling B; (d) by subjecting B to any other detriment.”

Having concluded that s 45(2) did so apply, Langstaff J then made the following statement obiter – and this is the important bit for students of law and religion:

“The crux of the issue was whether or not s 45 was to be read as including a legal person as well as a natural person as a member [8].29. In my view, the fact is that the thrust of anti-discrimination legislation is always likely to be focused upon an individual and his or her reaction to the insult that discriminatory treatment gives. However, the question is whether or not others – whether individual or corporate – may have the right to complain that they too have suffered detriment by reason of the way individuals have been treated. It seems to me that there are any number of examples that may be given of treatment which comes within the scope of this question that is plainly contrary to public policy. Examples might be a company being shunned commercially because it is seen to employ a Jewish or ethnic workforce; a company that loses a contract or suffers a detriment because of pursing an avowedly Roman Catholic ethic; one that suffered treatment because of its financial support for the Conservative Party or, say, for Islamic education; or one that was deliberately not favoured because it offered employment opportunities to those who had specific disabilities that were unattractive to some would-be contractors or because, let us suppose, of the openly gay stance of a chief executive. These examples may not necessarily be brought within Chapter 5, but all are examples of the way in which one person, natural or legal, may suffer because of the protected characteristic of another when public policy tends to the view that that is no proper basis for any such treatment” [29: emphasis added].

So, for example, could a company targeted by a boycott of Israel take successful legal action against the boycotters? The Jewish Chronicle suggests that that might be a possibility. For our part we aren’t so sure: but who knows? [Thanks to Paul de Mello Jr].

Ireland and equality legislation

And while we’re on the subject of equality, in Ireland s 37 Employment Equality Act 1998, as amended by the Employment Equality Act 2004, provides as follows:

“37.—(1) A religious, educational or medical institution which is under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values shall not be taken to discriminate against a person for the purposes of this Part or Part II if—

(a) it gives more favourable treatment, on the religion ground, to an employee or a prospective employee over that person where it is reasonable to do so in order to maintain the religious ethos of the institution, or

(bit takes action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution.”

Religious, educational, or medical institutions “under the control of a religious body” include more than 90 per cent of primary schools and more than 50 per cent of post-primary schools. This means that someone who works in (or who wishes to work in), for example, a school or a hospital controlled by a religious institution can be sacked, denied promotion or never employed in the first place if he or she is cohabiting with a partner without being married, is divorced, gay or lesbian, or an unmarried parent – or even simply an atheist or of the “wrong” religion. It is the religious institution’s decision as to whether or not the person concerned is “undermining” its religious ethos.

But all that is about to end. Proposed legislative changes were introduced by Senator Averil Power several years ago in Seanad Éireann but the Government of the day argued that they were unconstitutional; however, The Irish Times reports that both Houses of the Oireachtas have now agreed amendments to the Equality (Miscellaneous Provisions) Bill that, when signed into law, will shift the emphasis on protection to the employee rather than the institution.

Which, given that Ireland has introduced same-sex marriage by popular vote, seems to end a curious anomaly. [Thanks to Simon Sarmiento].

Meanwhile in Northern Ireland…

… the misfit between the local law on health and family issues and the law in Great Britain continues to be a matter of enormous controversy. As we reported, on Monday the High Court held in Northern Ireland Human Rights Commission, Re Judicial Review [2015] NIQB 96 that the current abortion legislation in Northern Ireland is in breach of Article 8 ECHR (private and family life) because it does not allow for termination where there is a serious malformation of the foetus (including where there is a fatal foetal abnormality) or where the pregnancy is the result of rape and/or incest.

Coincidentally, the BBC reports that it has seen the new draft guidelines on abortion in Northern Ireland and that they continue to advise doctors that fatal foetal abnormality is not in itself grounds for lawful termination. Justice Minister David Ford told BBC Northern Ireland that he had received a copy of the new guidelines on Monday after the High Court ruling and said that they “may well be a fair reflection of the law if it hadn’t been for that judgement … But in the face of the court decision, we’ve now got a conflicting issue of guidance which seems to me to be out of date four of five hours before it was circulated.”

On the other contentious family law issue – same-sex marriage – in two linked cases a challenge is being brought to the non-recognition of marriages solemnised in Great Britain, while a separate challenge is being mounted over the refusal of the Northern Ireland Assembly to enact the necessary legislation to allow same-sex couples to marry in the Province. Presumably judgments will be handed down some time after Christmas.

Organ donation in Wales

The Human Transplantation (Wales) Act 2013 received Royal Assent on 10 September 2013 and came fully into effect on 1 December 2015. The Act introduces a soft opt-out system for consent to deceased organ and tissue donation in Wales from 2015, and aims to increase the number of organs and tissues available for transplant. From last Tuesday onwards, adults in Wales are regarded as having consented to organ donation unless they have opted out. The BBC reports that more than one million people – 34% of the population – had already registered to opt in whereas 86,000 had opted out. During the previous year, 14 people died whilst waiting for a transplant in Wales, and currently there are 224 people on the waiting list, including eight children.

The “soft opt-out system” now applies as follows:

  • It includes all those aged 18 and over who have lived in Wales for more than 12 months and who die in Wales.
  • Residents become potential donors either by registering the decision to opt in – as previously – or by doing nothing at all, in which case their consent may be deemed.
  • If families knew their loved one did not wish to be an organ donor – even if the deceased had not opted out – they will still be able to tell doctors and donation will not take place

Further information is available here. The Human Tissue Authority (HTA) has published a code of practice giving guidance on the new legislation.

EDMs, e-petitions & other comments on Lord’s Prayer advert

In our post That cinema advert we commented that the objective of the advertisement – raising the awareness of prayer and the Church’s justpray.uk initiative – appeared to have been achieved and that maybe it was time for the Church to move on and capitalize on its undoubted success. The initial media coverage of Digital Cinema Media’s (DCM) refusal was such that apart from the expenditure in making the ~60-second advertisement, it has not been necessary for the CofE to use more of its budget for showing the as in cinemas. This would be a “win-win” on most people’s reckoning and it could be argued that little added value would be gained if the DCM decision were to be reversed. However, the Church Times reports (£) that a formal complaint has been made by the CofE to the Equality and Human Rights Commission (EHRC).

Much of the relevant e-mail correspondence between the Church and DCM is now available here; a number of other organizations and individuals have sought to keep the issue in the public domain, and the issue seems to have taken on a life of its own. In addition to a valid question in the Upper House by Lord Bishop of Chelmsford, there has been a spurious point of order in the Commons and an Early Day Motion by Jim Shannon which has attracted only fifteen signatures since it was tabled on 23 November. This week the Second Church Estates Commissioner answered two written questions on the media advertisement of Lords’ Prayer, 17709, and the Commissioner’s investments in cinemas and buildings housing cinemas, 17708. On 5 December, the Mail reported that a group of “senior MPs and peers” had written “a hard-hitting letter demanding that Britain’s biggest cinema chains lift their ban on the Church of England’s Lord’s Prayer film”, and for good measure, the Mail launched its own petition to reverse the decision.

In addition there have been five rejected e-petitions. Significant was the ground for their rejection: “It’s about something that the UK Government or Parliament is not responsible for. This decision is a result of the policy of Digital Cinema Media, not a decision by the Government or Parliament”, i.e. what we said in our post. In addition to the EHRC statement which said: there is no “right not to be offended” in the UK; and “nothing in law that prevents Christian organisations promoting their faith through adverts,” the Advertising Standards Authority has issued Religious advertising and the rules

“The non-broadcast Advertising Code does not prohibit religious ads … Ads that appear in broadcast media (TV and radio) have a specific set of advertising rules.

In terms of an advertiser being refused space to run its ad, that decision is entirely at the discretion of the owner of the media space in which the ad is due to run. The ASA cannot intervene. While advertisers and, indeed, the wider public may disagree with a media owner’s policy, the initial decision whether to accept or reject an ad (or ads) rests with them.”

Responding in part to criticism in Gillan Scott’s The National Secular Society’s vacuous and arrogant stance against the Lord’s Prayer, the NSS has posted Time for the Church to come clean on the ‘Just Pray’ controversy. This stated, amongst other things:

“We have no objection to or interest in religious groups producing adverts, nor have we ever suggested the film is offensive; but we do have a strong objection to contrived controversy being used to manufacture a false narrative that Christians are being persecuted,”

and concluded:

“It seems highly likely that this charade will have been counter-productive. That even the supposedly cuddly CofE is willing to reach for its lawyers over this will have led responsible advertising executives the length of the country to conclude that the best way of avoiding discrimination claims is not to accept any religious advertising for fear of litigation from others, including those with a less palatable message but with very long [deep?] pockets.”

Whilst we do not necessarily agree with the “fear of religious advertising” conclusion, the impression given by future litigations by the CofE chimes with what we said in November. It is probably time for all parties to accept that the Church of England has effectively gained “first mover advantage”, and to drop further comment, recriminations &c. Although issues of freedom of speech are involved, this is not the correct vehicle with which to pursue them. We note that in her written answer 17709, the Second Church Estates Commissioner said:

“The Church of England has no plans [for] advertisements of the Lords Prayer in local or national newspapers. Many national and local newspapers have already covered the story. As of 27 November 2015 online articles had received over 5.15 million views.”

[With thanks to Simon Sarmiento for the update]

A “British Bill of Rights”?

The controversy about the Government’s proposed “British Bill of Rights” grumbles on. On 2 December the House of Lords Constitution Committee took evidence from Michael Gove, Lord Chancellor and Secretary of State for Justice, on which we posted a brief summary.

Sikhs, turbans and motorcycles again

Since the enactment of the Motor-Cycle Crash-Helmets (Religious Exemption) Act 1976 (now incorporated into s 16(2) Road Traffic Act 1988), Sikhs in the UK have not been obliged to wear motorcycle helmets if they prefer to wear turbans, while Sikhs working in the construction industry have been exempted from rules requiring hard-hats: see ss 11 & 12 Employment Act 1989. As we noted at the time, ss 6 & 7 of the Deregulation Act 2015, which came into force on 1 October, have extended the existing exemption in the Employment Act to all workplaces.

It’s different in Germany; and Dr George Neureither reports that the Administrative Court [Verwaltungsgericht or VG] of Freiburg has rejected the claim of Sikhs against the City of Konstanz that their fundamental right to religious freedom releases them from the obligation to wear a helmet when riding a motorbike. Though it was indeed an interference with freedom of religion, the Court held that it was justified as not profoundly restricting the claimant’s religious life. It touched only on a small part of the claimant’s daily life and related to a single type of motorised transport: he could use all other means of transport while still respecting his religion.

Sounds to us like a slightly unusual, specialised application of the ‘specific situation rule’.

Another case of clerical abuse…

… and this time one very close to home. On Friday the Church Times reported that the Church of England has paid £35,000 in compensation and apologised to a survivor of clerical sexual abuse. The anonymous victim named his abuser as Garth Moore, who will be well-known to many readers of this blog as a leading authority on ecclesiastical law and Chancellor of the dioceses of Southwark, Durham and Gloucester. Moore, who died in 1990, was Vicar of St Mary Abchurch, where the victim was a server. A Church of England spokeswoman said:

“We offer an unreserved apology. Abuse is a devastating betrayal of trust that should never be allowed to happen, particularly in the Church. We can confirm that we have reached a settlement with the survivor and the abuse reported is a matter of deep shame and regret. In reaching this settlement we acknowledge his courage and tenacity in reporting the abuse and ensuring action from the Church. We have launched an independently led review of lessons learnt from this case, and when completed it will be shared with the survivor, and the findings published. We continue to be committed to making the Church a safer place for all, while acknowledging that, for survivors, the effects of abuse are lifelong.”

RE and collective worship in schools

Today’s Sunday Programme ran a special edition on The Future of Religious Education: well worth listening to.

The issue is becoming increasingly controversial; and the Commission on Religion and Belief in British Public Life chaired by Baroness Butler-Sloss is to publish a report tomorrow on Living with Difference: Community, Diversity and the Common Good which, The Guardian reports, is expected to recommend scrapping the legal requirement to provide daily acts of worship of a broadly Christian character. We shall report on it in due course: in the meantime, Lee Coley of Stone King LLP mused about the specific issue of collective worship, here.

And finally …

This week The News Biscuit posted the spoof news item Wi-Fi signals can interfere with prayer, warns Church of England suggesting that the CofE has released guidance suggesting that mobile devices should be put into airplane mode before asking for the Lord’s blessing since “[s]tudies have shown that Wi-Fi signals in both the 2.4Ghz and 5Ghz bands can seriously degrade and, in some cases, entirely block prayer”. Whilst many clergy would welcome such use of the “airplane mode” during divine service, (which incidentally enables speedier charging of a device), the issue of Electromagnetic Hypersensitivity, (EHS), is one addressed by the consistory courts, as here, and in Re Wandsworth St Anne [2015] Southwark Const Ct, Philip Petchey Ch, a review of which will be posted later.

The WHO has stated that “EHS is characterized by a variety of non-specific symptoms that differ from individual to individual. The symptoms are certainly real and can vary widely in their severity. Whatever its cause, EHS can be a disabling problem for the affected individual”. The symptom is generally self-diagnosed and reported; the consistory courts rely upon Codes of Practice and evidence that none of the existing installations tested since 2001 exceeded 0.005% of the specified radiation limit.

Finally, (though it’s never happened to Frank) there are few things more embarrassing than having your mobile go off during a Quaker meeting for worship…

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